Oriental Insurance Comp. Ltd. ... vs Smt. Chanchala And Ors.
2019 Latest Caselaw 4172 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

[Court No. 30]
 
(Reserved)
 
(AFR)
 

 
[CASE :- FIRST APPEAL FROM ORDER NO. - 920 OF 2010]
 
Appellant :- Oriental Insurance Comp. Ltd. Through Its Manager
 
Respondent :- Smt. Chanchala And Ors.
 
Counsel for Appellant :- Suresh Panjwani
 
Counsel for Respondent :- A.P. Singh,Atul Mishra
 

 
Hon'ble Vikas Kunvar Srivastav,J.

1. The present First Appeal From Order is filed by the Oriental Insurance Company Ltd. against the judgment and award dated 16.04.2010, passed by learned Special Judge, SC & ST (P.A.) Act, Hardoi/Motor Accident Claims Tribunal in Motor Accident Claim Petition No. 83 of 2008 (Smt. Chanchala and Others Vs. Somendra Singh & Others) awarding a compensation of Rs. 4,10,000/- alongwith interest thereon @ 6 % to the claimant-respondent nos. 1 to 8 in this appeal.

2. The Motor Accident Claim Petition was filed by claimant-respondents No. 1 to 8, claiming compensation with regard to accident occurred on 02.04.2008, wherein Rakesh, husband of the claimant-respondent no. 1 when riding his motorcycle no. UP 27 J/9406 was dashed by a tractor, coming from back side, bearing No. UP 30B/4672 due to which he fell down on the road and got seriously injured. He was brought to the hospital where he died. Respondents no. 9 & 10 respectively, are the owner and the driver of the offending vehicle described herein-above.

3. For the purpose of brevity and convenience, the appellant-Oriental Insurance Company Ltd. shall, hereinafter be addressed as 'Insurer', claimant-respondents shall be addressed as 'Claimants' and the tractor alleged to have caused the accident due to rash and negligent driving will be addressed as 'offending vehicle' only.

4. The claimants are respectively wife (widow) of the deceased-victim (Rakesh) i.e. Smt. Chanchala and 5 minor children Km. Priya aged about 17 years, Km. Shashi aged about 14 years, Km. Manisha aged about 11 years, Master Amit aged about 7 years and Master Som aged about 3 years respectively at the time of filing of the instant appeal in the year 2010. Alongwith the wife and minor children, the parents of the deceased are also arrayed as claimants no. 7 and 8.

5. The grounds set forth in the memo of appeal assailing the impugned judgment and award dated 16.04.2010 are that the learned Motor Accident Claim Tribunal ought to have held the offending vehicle, not involved in the alleged accident and it was simply a case of 'hit and run' by some other vehicle. Despite the said fact, the chargesheet filed by the police, though has no force of conclusive evidence for the purpose of adjudication under the Motor Vehicles Act, the learned Motor Accident Claims Tribunal has given undue weightage to the same, even the offending motor vehicle was not seized on the spot. The relevant objections against the claim petition were not considered while the learned Motor Accident Claim Tribunal recorded its findings in the judgment, despite the fact that the appellant has categorically denied the accident with the tractor. The First Information Report did not state about the registration number of tractor in question and driver but it only states that the offending vehicle was 'Swaraj Tractor' relates to village Anangpur, whereas there are so many tractors in Anangpur and insured with Insurer. Moreover, his tractor is 'escort' tractor. Story of hit and run by a tractor to the motorcycle from the back side is quite improbable. PW-2 is produced as an eye witness of the accident. He also says that some other persons have witnessed the accident but they are not produced as witness. On the aforesaid grounds, the appellant 'insurer' has made a prayer to allow the appeal by setting aside the impugned judgment and award of the learned Motor Accident Claim Tribunal exonerating the appellant-insurance company from the liability to pay the compensation in the present case.

6. From the perusal of the impugned judgment, it appears that the learned Motor Accident Claim Tribunal framed 5 issues. The first issue is relating to the accident alleged to be happened on 02.04.2003 at 05:15 p.m. by the tractor bearing No. UP 30B/4672 due to rash and negligent driving by it's driver who dashed the motorcycle bearing No. UP 27 J/9406 being driven by the victim-Rakesh due to which he had received serious injuries and ultimately died. The burden to prove this issue lies upon the claimants. The second issue is relating to the driving licence which plea was taken by the insured in the matter as to the driver at the time of accident was having a valid and effective driving license. The burden of proving this issue lies on the owner and driver of the offending motor vehicle. The issue no. 3 is relating with the plea taken by the insured as to, at the relevant date and time of the accident the offending motor vehicle was insured by the insurer-appellant and the insurance was effective on that date. The issue no. 4 is with regard to the quantum of compensation, which the learned Motor Accident Claim Tribunal had to work out on the basis of established income and the dependency of the claimants-respondents on the deceased-victim of the accident etc. This issue had to be decided by learned Motor Accident Claims Tribunal on the basis of facts and evidences with regard thereto. Lastly the issue no. 5 is only a formal issue, as to whether claimants are entitled to any other relief.

7. Learned counsel for the appellant-Insurer Sri Suresh Panjwani and Sri A.P. Singh, Advocate and Sri Anil Mishra, Advocate, learned counsels for the respondent have submitted their arguments. Heard the learned counsel and perused the lower court's record.

8. Learned counsel for the appellant vehemently argued that the accident as stated to have been occurred, in the claim petition, was though denied before the Motor Accident Claim Tribunal by the appellant-insurer, but the learned Motor Accident Claim Tribunal decided issue no. 1 relating to the accident on the basis of unfounded facts in the petition taking into consideration the irrelevant and inadmissible evidences, brought on record by the claimants-respondents.

9. A preliminary objection raised by learned counsel for the respondent Sri A.P. Singh, Advocate is that this argument cannot be raised before the Appellate Court as the appellant neither pleaded the same in its written statement nor moved any evidence with regard thereto, before the Tribunal.

10. The argument, advanced by Sri Suresh Panjwani, learned counsel for the appellant-Insurance Company, is that the owner has not filed any appeal against the judgment and award of compensation ordered by the tribunal due to rash and negligent driving of his driver. Therefore, from conduct of the owner has obviously connived with the claimants to support their case, which gives right to the appellant-Insurance Company under the Motor Vehicles Act, 1988 to take all defences available to the owner by virtue of Section 170 alongwith those which are available to an insurer under Section 149 (2) of the Motor Vehicle Act, 1988. If it is so, the objection of learned counsel for the claimants stand countered.

11. Learned counsel for the respondent Sri A.P. Singh argued that the sole ground of the appeal is, non-involvement of the offending motor vehicle in the accident, therefore if the terms and conditions of the policy of insurance, as entered between the appellant-Insurance Company and the owner of the offending vehicle are not violated and the claimants-respondents succeed in proving the accident in question due to rash and negligent driving of the driver, wherein the deceased-Rakesh received injuries and subsequently died, then the owner would be liable under the principle of vicarious liability to the risk occasioned in the instant case, i.e. the death of the deceased, and the Insurance Company-the appellant neither has pleaded any breach of terms and conditions of the policy of insurance nor proved the same, it has to pay all the compensation, as awarded by the Tribunal, to the claimants-respondents to indemnify the insured.

12. Learned counsel for the claimants-respondents further argued that the collusion is not between the claimants-respondednts and the owner of the offending vehicle, but it is in between the appellant-Insurer and it's 'insured' i.e. the 'owner' and both of them are lingering the matter anyhow to avoid the payment of compensation awarded by the Tribunal.

13. In the light of the aforesaid argument for the purpose of looking into the findings of the MACT, whether they are perverse in view of the materials and evidences available on record, it is necessary to appreciate the same.

14. The moot question in this appeal is whether the accident, as stated by the claimants-respondents in their claim petition before the Tribunal, is proved ? At this stage, it would not be out of place, to mention that in the motor accident claim cases the burden to prove the fact of accident lies upon the claimant, but this burden is not so strict as in criminal cases. The claimant has burden to prove accident on preponderance of probabilities by prima facie evidences only.

15. Hon'ble Apex Court in the case of Archit Saini & Anr. Vs. The Oriental Insurance company Limited & Ors. reported in [AIR, 2018, SC 1143], decided on 9th February, 2018 by a Three Judges Bench headed by the then Chief Justice of India Hon'ble Justice Dipak Misra alongwith Hon'ble Justice A.M. Khanwilkar and Hon'ble Dr. Justice D.Y. Chandrachud held as under:

".......while considering a claim petition, the Tribunal is required to hold an enquiry and act not as criminal court so as to find whether the claimants have established the occurrence beyond shadow of any reasonable doubt. In the enquiry, if there is prima facie evidence of the occurrence there is no reason to disbelieve such evidence. The statements coupled with the facts of registration of FIR and trial of the accused in a criminal court are sufficient to arrive at a conclusion that the accident has taken place. Likewise, in Kusum Lata Vs. Satbir, 2011 (2) RCR (C) 379 (SC) Hon'ble Apex Court has held that in a case relating to motor accident claims, the claimants are not required to rove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. Strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."

16. In view of the aforesaid judgment of Hon'be Apex court while examining the evidence before the Tribunal with regard to the accident, it is found that the claimants-respondents have filed in evidence the certified copies of the First Information Report, post-mortem report, registration certificate of offending motor vehicle, the insurance policy of the offending motor vehicle-the tractor, the insurance certificate and registration certificate of motorcycle of the deceased-Rakesh alongwith his driving license. Further, the claimants have filed in evidence the certified copies received from the court. The site mape and the chargesheet submitted in Case Crime No. 126 of 2008, under Section 279, 338, 304-A IPC with regard to the accident against the owner and driver of the Tractor No. UP 30B/4672 in the said case crime number. The claimants have produced their witnesses for adducing their evidences. PW-1-the claimant-respondent Chanchala, widow of deceased-Rakesh has deposed that when her husband-deceased-Rakesh was going to his sister's house by his motorcycle alongwith his friends and was driving his vehicle slowly on his side of the road, the offending motor vehicle i.e. Tractor No. UP 30B/4672, coming from the back side speedily and rashly, dashed the motorcycle, whereby the motorcycle was thrown down one side and they fell down on the other side of the road. One pillion rider Sunil died on the spot and injured victim-Rakesh and another pillion rider Jitendra were brought to the hospital, wherein victim-Rakesh died of the injuries sustained in the accident. Jitendra also died during treatment in Lucknow. Her statement is fully corroborated with the post-mortem report wherein the doctor, who conducted the post-mortem, opined the cause of death the head injury.

17. PW-1-Claimant-the wife of deceased-Rajesh stated that Mukesh Kumar is another witness of the accident dated 02.04.2008. She further refers some other commuters on the road namely Shishupal and Kalicharan and other villagers who witnessed the accident as they were passing by the road at the relevant time of accident. The narrative, as orally proved by PW-1 in her examination before the Tribunal is further corroborated with the documentary evidences i.e. certified copy of the First Information Report in Case Crime No. 126 of 2008 (paper no. 16ga/3), accident inspection report (paper no. 16ga/5), the chargesheet in the aforesaid Case Crime No. 126 of 2008, under Section 279, 338, 304-A IPC (paper no. 16ga/7), post mortem report of deceased-Rakesh (paper no. 16ga/9 and 16ga/10) and statement of Mukesh Kumar (PW-2).

18. The said Mukesh Kumar is examined in evidence before the Tribunal as PW-2. He is an eye witness and his presence at the spot of incident is probable and proved in the cross-examination, being a shop owner there. There is no contradiction in narration of the accident between the two witnesses PW-1 and PW-2. Therefore, the witness PW-2 is reliable eye witness. He stated on oath that the driver of offending motor vehicle was driving the tractor very speedily and rashly and thus dashed the motorcycle of Rakesh from the back, while he was driving the motorcycle slowly on his right side of road. The PW-2 remained intact with his statement in the cross-examination. His narration as to the negligence on the part of driver of the tractor in dashing the motorcycle of the victim Rakesh is corroborated with the documentary evidence, the accident inspection report (paper no. 16ga/5).

19. The chargesheet clearly mentions the name of Arvind Singh son of Jahar Singh in column of the accused-driver of the offending vehicle. It is noteable here that the aforesaid Arvind Singh is made opposite party no. 2-driver of the offending motor vehicle-Tractor No. UP 30B/4672 and Somendra Singh S/o Brijraj Singh as opposite party no. 1-the owner of the said tractor in the claim petition by the claimants. The offences under the relevant sections of IPC, as framed against the said accused Arvind Singh itself make it clear that at relevant date and time of accident, the offending motor vehicle-the tractor was being driven by him rashly and negligently, thereby accident took place, causing serious injuries to Rakesh who succumbed to death of the said injuries.

20. None of the evidences documentary or oral taken into consideration by the MACT is irrelevant to the fact in issue or inadmissible in evidence, therefore argument, contrary to this, advanced by the appellant, is not tenable.

21. The argument of learned counsel for the appellant-Insurance Company is not getting support from the law on this issue discussed and propounded by Hon'ble the Supreme Court in various cases. A similar case before Hon'ble Supreme Court, decided on 06.04.2018 Mangla Ram Vs. The Oriental Insurance Co. Ltd. and Others reported in [AIR 2018 SC 1900], wherein the appellant-victim was riding his motorcycle on 10.02.1990 was hit by a jeep owned by respondent no. 3 and driven by respondent no. 2 at the time, resulting in serious injuries and ultimately, amputation of his right leg above the knee. Respondent nos. 2 and 3 denied not only the accident but also the involvement of the jeep in the said accident. On filing the claim petition by the appellant before the Motor Accident Claims Tribunal, the Tribunal discussed the evidence on record. The PW-2 and PW-4 who had taken the appellant to the hospital after the accident, deposed that after the accident, the jeep which caused the accident stopped ahead and they noted the jeep number in the backlight and further, they heard the driver's name being called out by the passengers in the jeep. The Tribunal further found that their version of having noted the jeep number and having heard the driver's name seemed to be unnatural. The tribunal also discarded the version of the appellant (PW-1) about the details of the vehicle as being not reliable. The Tribunal also noted the evidence of the defence witnesses, that the jeep in question was nowhere near the area of the accident. The Tribunal opined that the accident had been caused by the jeep in question based on the investigation report filed by the police mentioning that when they seized the jeep after one month of the accident, the jeep bore a scratch on the mudguard of the tyre on the upper footboard on the left side etc. Tribunal also relied on the chargesheet filed by the police, wherein it has been stated that the accident was caused by the jeep in question on the basis of statements made by the appellant and other witnesses. The tribunal held that there was no reason to disagree with the conclusion of the police. In short, the tribunal disbelieved the evidence of the appellant's witnesses, regarding the commission of accident by the jeep in question, as unreliable but nevertheless relied upon the investigation report as also the chargesheet filed by the police in that regard which was supported by two other witnesses who did not depose before the tribunal. The appellant challenged the tribunal award before the High Court which concluded that the tribunal's finding were incorrect, unconvincing and not supported by evidence. Further, the tribunal's reasoning, that it did not believe the oral evidence of the parties but had nevertheless answered the issue in favour of the claimant solely on the basis of the police report, on the ground that there was no reason not to believe the conclusion arrived at by the police, was flawed and incorrect.

22. In the aforesaid facts and circumstances, Hon'ble the Supreme Court in it's judgment, referred hereinabove, discussed in para 10, 13, 15, 16, 18, 19 and 21 as under:

"10. The moot question which arises for our consideration in these appeals is about the justness of the decision of the High Court in reversing the finding of fact recorded by the Tribunal on the factum of involvement of Jeep No. RST-4701 in the accident occurred on 10th February, 1990 at about 8.00-8.30 P.M. and also on the factum of negligence of the driver of the jeep causing the accident in question. On the first aspect, the High Court has noted that the Tribunal having discarded the oral evidence adduced by the Appellant (claimant) could not have based its finding merely on the basis of the FIR and the charge-sheet filed against the driver of the offending vehicle and also because the mechanical investigation report (Exh. 5) merely indicated that on the left side of the offending vehicle a scratch mark was noticed on the mudguard of the left tyre which contradicted the statement of the claimant and the Police Investigation Report much less showing involvement of the vehicle in the accident. As regards the second aspect on the factum of negligence, the High Court noted that the Tribunal did not record any finding about the negligence of the driver of the jeep and the site map (Exh. 2) would indicate that the Appellant/claimant himself was negligent in driving the motorcycle in the middle of the road.

13. The debatable issue is about the factum of involvement of Jeep No. RST-4701 allegedly driven by Respondent No. 2 and whether it was driven rashly and negligently as a result of which the accident occurred.

15. The High Court, however, reversed this finding of fact rendered by the Tribunal essentially on two counts: First, that the Tribunal having discarded the oral evidence about the involvement of Jeep No. RST-4701 in the accident in question, allegedly driven by Respondent No. 2, could not and ought not to have recorded the finding on the relevant issue against Respondent Nos. 2 & 3 merely by relying on the documents forming part of the police charge sheet. Second, the jeep seizure report (Exh. 5) indicated that only a scratch on the mudguard of the left tyre of the vehicle was noticed, which contradicted the claim of the Appellant about the involvement of the vehicle.

16. The question is: whether this approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in Bimla Devi (supra) noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. In paragraphs 11-15, the Court observed thus:

11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post-mortem report vis-a-vis the averments made in a claim petition.

12. The deceased was a constable. Death took place near a police station. The post-mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of the constable had taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus-stand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body.

13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate Respondents 2 and 3. The claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the first information report had been lodged in relation to an accident could not have been ignored.

14. Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.

15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.

18. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal and Ors (1980) 3 SCC 457, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under the Indian Penal Code, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in paragraph 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus:

3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard.

19. In Dulcina Fernandes reported in [(2013) 10 SCC 646], this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the Respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the Respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi reported in [(2009) 13 SCC 530]). In paragraphs 8 & 9, of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta reported in [(2011) 10 SCC 509], has been adverted to as under:

8. I n United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10)

10. (ii) The Rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.

***

(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. ...

(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.

9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, SCC p. 519)

10. ... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.

In paragraph 10 of the reported decision [Dulcina Fernandes and Ors. (supra)], the Court opined that non-examination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability.

21. Another reason which weighed with the High Court to interfere in the First Appeal filed by Respondent Nos. 2 & 3, was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST-4701 was driven rashly and negligently by Respondent No. 2 when it collided with the motorcycle of the Appellant leading to the accident. This can be discerned from the evidence of witnesses and the contents of the charge-sheet filed by the police, naming Respondent No. 2. This Court in a recent decision in Dulcina Fernandes (supra), noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge-sheet against Respondent No. 2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the Accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal. Reliance placed upon the decisions in Minu B Mehta (supra) and Meena Variyal (supra), by the Respondents, in our opinion, is of no avail. The dictum in these cases is on the matter in issue in the concerned case. Similarly, even the dictum in the case of Surender Kumar Arora (supra) will be of no avail. In the present case, considering the entirety of the pleadings, evidence and circumstances on record and in particular the finding recorded by the Tribunal on the factum of negligence of the Respondent No. 2, the driver of the offending jeep, the High Court committed manifest error in taking a contrary view which, in our opinion, is an error apparent on the face of record and manifestly wrong.

23. The learned Tribunal has considered all the evidences and held that the offending motor vehicle No. UP 30B/4672, due to rash and negligent driving of driver Arvind Singh, caused the accident wherein Rakesh, husband of the claimant-respondent no.1 died. Since there is sufficient evidence to show the said accidental death with the offending motor vehicle with all preponderance of probabilities, therefore, the learned Motor Accident Claim Tribunal has not erred in holding the issue no. 1 with regard to the happening of the accident positively in favour of the claim-petitioners.

24. The next question arises as to whether the appellant-Oriental Insurance Company is under liability to indemnify its insured-the tractor owner with regard to compensation payable to the claimants as legal heirs of the deceased-Rakesh in the accident due to rash and negligent driving of the driver of the tractor wherein Rakesh died of the injuries received by him in the accident.

25. It is not in dispute that the said tractor was insured by the opposite party no. 3-The Oriental Insurance Company Ltd. Certified copy of the insurance certificate is on record showing sufficiently that tractor No. UP 30B/4672 is insured with the appellant-Insurance Company effective from 10.04.2007 to 09.04.2008. Since the accident was occurred on 02.04.2008, therefore, it is covered under the effective period of Insurance Policy and, thus, Insurance Company would be liable to indemnify its insured, unless the Insurance Company has any other ground to establish, on the basis of evidence before the Tribunal, to avoid it's liability. The record is perused for the purpose of finding such evidence, if any, available before the learned Motor Accident Claim Tribunal.

26. Before the learned Motor Accident Claims Tribunal the insurer neither has pleading specifically alleging the breach of any particular term or condition of policy as envisaged nor led evidence to that effect before the tribunal so as to make ground to avoid liability under the judgment and award of compensation passed by the learned Motor Accident Claim Tribunal, payable to the claimants. Under Section 146-147 of the Motor Vehicles Act, the purpose of compulsory insurance is to protect the interest of third party from the risk of death or any other bodily injury or harm to property which might have occasioned by the use of motor vehicle in the public place subject to evidence of any breach as envisaged under Section 149 sub Clause (2) of the Act. Therefore, learned Motor Accident Claims Tribunal, in the absence of any such evidence, cannot be said to be in error in directing the Insurance Company to pay of the compensation on behalf of the owner-insured.

27. The learned Motor Accident Claims Tribunal has worked out the compensation to the tune of Rs. 4,08,000/- along with an interest at the rate of 6 % per annum from the date of filing of the petition till the date of actual payment made to the claim-petitioners. Since the quantum of the compensation is not challenged in this appeal nor the claim-petitioners nos. 1 to 8 have filed any appeal for enhancement, therefore, the finding as to the quantum of compensation need not to be interfered by this Court in appeal.

28. The sole question raised in the appeal and vehemently argued by learned counsel for the appellant-Insurance Company is with regard to involvement of the tractor no. UP 30B/4672 in the accident, wherein deceased-Rakesh died on 02.04.2008 by rash and negligent driving of the driver of the said offending vehicle. The accident is found established by evidence before the learned Motor Accident Claim Tribunal by the claimant-respondent nos. 1 to 8.

29. In concluding para no. 110 of the Hon'ble Apex Court's judgment in National Insurance Company Ltd. Vs. Swaran Singh and Others reported in [(2004) 3 SCC 297], the liability of the insurer with regard to indemnify the insured has been clarified. The relevant portion whereof is being quoted hereinunder:

"(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.

(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.

(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them."

30. Further, in the appeal, no ground as to violation of breach of any terms and condition under the policy by the appellant has been pleaded and proved before learned Motor Accident Claims Tribunal. Therefore, direction given to the Insurance Company-the appellant to indemnify the claimants-respondents with regard to the payment of compensation as awarded by the Motor Accident Claims Tribunal on behalf of insurer, is also not needed to be interfered. Hence, the appeal is devoid of merit and is liable to be dismissed.

The appeal is accordingly dismissed. The appellant-Insurance Company is directed to comply with the judgment and award dated 16.04.2010 passed by learned Special Judge, SC & ST (P.A.), Act, Hardoi/Motor Accident Claims Tribunal in Motor Accident Claim Petition No. 83 of 2008 (Smt. Chanchala and Others Vs. Somendra Singh & Others) within 30 days from the date of judgment. In case of failure, learned Motor Accident Claims Tribunal is directed to enforce and execute the award against the appellant-Insurance Company so as to make payment of the award amount to the claimants-respondents within two months from the date of judgment.

The statutory deposit made by the appellant or any other deposit made before the Tribunal shall be adjusted in the award amount.

There shall be no order as to costs.

Order Date :- 07/05/2019

Asheesh/kkv

[Vikas Kunvar Srivastav,J.]